Citation Nr: 9814071
Decision Date: 05/05/98 Archive Date: 05/20/98
DOCKET NO. 91-54 506 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
St. Petersburg, Florida
THE ISSUES
1. Entitlement to service connection for disabilities of the
low back, left knee, left hip and left shoulder as secondary
to a service-connected right knee disability.
2. Entitlement to an increased evaluation for a right knee
disability, currently evaluated as 30 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
A. Shawkey
INTRODUCTION
The veteran served on active duty from August 1968 to May
1972.
This matter comes before the Board of Veterans’ Appeals
(Board) on appeal from a January 1989 RO rating decision that
denied the veteran’s claim of service connection for
disabilities of the low back, left knee, left hip and left
shoulder as secondary to service-connected right knee
disability. Also in this decision the RO continued a 30
percent evaluation for the veteran’s service-connected right
knee disability.
REMAND
This case was previously before the Board in June 1991 and
January 1993 at which times it was remanded to the RO for
further development, including obtaining a medical opinion on
the relationship, if any, between the veteran’s service-
connected right knee disability and her claimed disabilities
of the low back, left knee, left hip and left shoulder. In
response to these remands, the veteran’s claims file was
reviewed by a VA physician in June 1993 who proffered an
opinion that “[o]ne could speculate that the [veteran’s]
chronic knee pain may have been indirectly the cause of [her]
low back problem.” He went on to say that “[o]n the other
hand, [the veteran’s] low back pain could be completely
independent of her right knee problems…”.
The June 1993 opinion described the range of possible answers
to the questions posed, but it provided no useful medical
information. For this reason, the RO referred the veteran to
a private orthopedic surgeon for an examination in February
1997. Despite the VA’s specific request to the private
examiner for an opinion on the relationship, if any, between
the veteran’s service-connected right knee disability and her
claimed low back, left knee, left hip and left shoulder
disabilities, he failed to render such an opinion. Instead,
he pointed out that the veteran had “ancillary complaints of
left hip pain, left shoulder pain which she [felt was] due to
her limp, but she [understood] that some of her joint pains
could be due to the lupus.” (emphasis added). The examiner
issued an addendum report in March 1997 following his review
of the veteran’s claims file, but did not offer any further
opinion regarding a possible relationship between the
service-connected right knee disability and disabilities of
the low back, left knee, left hip, and left shoulder.
The United States Court of Veterans Appeals has established
legal requirements regarding the nature of the medical
evidence that must be developed in claims involving questions
of medical judgment. Colvin v.Derwinski, 1 Vet.App. 171
(1991). These requirements are mandatory and apply to the
Board of Veterans Appeals and all other branches of VA,
including Veterans Health Administration
In light of the absence of a medical opinion in the June
1993, February 1997 and March 1997 medical reports regarding
the relationship, if any, between the veteran’s service-
connected right knee disability and her left-sided orthopedic
problems, these reports must be considered inadequate for
adjudication purposes. Accordingly, the veteran must be
afforded a contemporaneous and thorough examination which
will definitively address this issue. This is in fulfillment
of the VA’s statutory duty to assist the veteran in properly
developing her well grounded (i.e., plausible) claim. See
38 U.S.C.A. § 5107 (a) (1997); Green v. Derwinski, 1 Vet.App.
121 (1991).
In regard to the veteran’s service-connected left knee
disability, the record shows that she is currently evaluated
as being 30 percent disabled under the criteria for knee
impairment. See 38 C.F.R. § 4.71a, Diagnostic Code 5257
(1997). While 30 percent is the maximum allowable rating
under this Code, greater evaluations are possible under the
criteria for knee ankylosis and loss of range of motion.
Diagnostic Codes 5256, 5260 and 5261.
In evaluating increased rating claims for orthopedic
disabilities, the Board observes that the Court has expounded
on the necessary evidence required for a full evaluation of
orthopedic disabilities. In the case of Deluca v. Brown, 8
Vet.App. 202 (1995), the Court held that ratings based on
limitation of motion do not subsume 38 C.F.R. § 4.40 or
38 C.F.R. § 4.45. It was also held that the provisions of
38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid
consideration of a higher rating based on greater limitation
of motion due to pain on use, including during flare-ups.
The guidance provided by the Court in Deluca must be followed
in adjudicating the veteran’s increased rating claims. As
such, the veteran’s new medical examination should include
medical findings regarding limitation of motion due to pain
on use, including during flare-ups.
It should also be noted that subsequent to a personal hearing
held at the RO in October 1989, the veteran requested a new
hearing before a “BVA Field Office”. This request was made
in January 1990. Although the veteran subsequently attended
another personal hearing at the RO in May 1990, there is no
indication from the evidence that this hearing satisfied her
request for a “BVA Field Office” hearing. To ensure that
full compliance with due process requirements have been met,
clarification should be made in regard to the veteran’s
January 1990 hearing request. See 38 U.S.C.A. § 7107 (West
1991); 38 C.F.R. § 20.700(a) (1997). In the event that the
veteran wishes to appear before a Traveling Member of the
Board, such a hearing should be appropriately scheduled.
Based on the foregoing, the case is REMANDED to the RO for
the following action:
1. The RO should ask the veteran to
clarify her request for a “BVA Field
Office” hearing. If she desires a
hearing before a Traveling Member of the
Board, such a hearing should be
appropriately scheduled. The veteran
should be notified of the date and time
of the hearing in accordance with
38 C.F.R. § 20.704(b) (1997).
2. The veteran should be afforded a VA
orthopedic examination to determine the
existence and etiology of disabilities of
the low back, left knee, left hip and
left shoulder, as well as the severity of
her service-connected right knee
disability. Such tests as the examining
physician deems necessary should be
performed. The examination should
include complete observations of the
ranges of motion of the affected areas.
All findings should be reported. The
claims folder should be made available to
the examiner for review before the
examination. The examiner should be
asked the following questions:
a. Whether it is at least as likely
as not that any disabilities of the
low back, left knee, left hip and
left shoulder are attributable to
the veteran’s irregular gait or
other abnormality of the service-
connected right knee disability.
The nature of the veteran’s
irregular gait should be so stated.
b. Whether the right knee exhibits
weakened movement, excess
fatigability, or incoordination
attributable to the service-
connected disability; and if
feasible, these determinations
should be expressed in terms of the
degree of additional range of motion
loss due to any weakened movement,
excess fatigability, or
incoordination. The examiner should
be asked to express an opinion on
whether pain could significantly
limit functional ability during
flare-ups or repeated use over time.
This determination should also, if
feasible, be portrayed in terms of
the degree of additional range of
motion loss due to pain on use or
during flare-ups. The examiner
should also record any objective
displays of pain.
3. The RO should readjudicate the claim
of service connection for disabilities of
the low back, left hip, left knee and
left shoulder as secondary to a service-
connected right knee disability as well
as the claim for an increased evaluation
for a right knee disability. If any
determination remains adverse to the
veteran, she and her representative
should be provided a supplemental
statement of the case.
Thereafter, the case should be returned to the Board for
further appellate consideration, if appropriate. The veteran
need take no action until she is further informed. The
purpose of this remand is to obtain additional information
and to afford the veteran due process of law. The Board
intimates no opinion, either legal or factual, as to the
ultimate conclusion warranted in this case.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1997) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
G. H. SHUFELT
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1996).
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